Chitambala Ntumba v The Queen ((1963-1964) Z and NRLR 132) [1964] ZMHCNR 3 (31 August 1964)

Full Case Text

CHITAMBALA NTUMBA v THE QUEEN (1963 - 1964) Z and NRLR 132 1963 - 1964 Z and NRLR p132 [Before the Honourable Mr. Jus�ce CHARLES on the 31st August, 1964.] Flynote Absolute liability - necessity for proof of mens rea - unlawful entry into a na�onal park and carrying arms therein - sec�ons 5 and 9 (1) of the Game Ordinance, cap. 106. Headnote The appellant was convicted in the subordinate court of unlawful entry into a na�onal park and carrying ﬁrearms therein. The magistrate found as a fact that the appellant had entered the park without knowing he had done so but nevertheless convicted the appellant as he decided that the sec�ons under which he was charged created oﬀences of absolute liability. Held: (a) That the sec�ons did not create oﬀences of absolute liability. (b) That mens rea had to be proved by the prosecu�on. Appeal allowed. Cases cited: (1) R v Nicola 2 NRLR 195. (2) Sherras v De Rutzen [1895] 1 QB 918. (3) R v Turnbull (1943) 44 SR (NSW) 608; 18 AL J 201. (4) R v Tolson (1889) 23 QBD 168. (5) In re Jordison: Raine v Jordison [1922] 1 Ch. 440. (6) Hobbs v Winchester Corporation [1910] 2 KB 471. (7) Mallinson v Carr [1891] 1 QB 48. (8) Thomas v The King (1937) 59 CLR 279. (9) In re Mahmoud v Ispahani [1921] 2 KB 716. (10) R v Ewart 25 NZLR 709. (11) Brend v Wood (1946) 62 TLR 462. (12) Harding & Price [1948] 1 All ER 283; 68 TLR 111. (13) Reynolds v G H Austin and Sons Ltd. [1951] 1 All ER 606. (14) Gardner v Akeroyd [1952] 2 All ER 306. (15) Lim Chin Aik v Reginam [1963] 1 All ER 223. (16) Cundy v Le Cocq (1884) 13 QBD 207. (17) James & Sons Ltd. v Smee. Green v Burnett and another [1954] 3 All ER 273. (18) R v St Margaret's Trust Ltd. [1958] 2 All ER 289. (19) Bank of New South Wales v Piper [1897] AC 383. (20) Nkoloso v The Queen, HPA 127/63 (unreported). A B Mitchell - Heggs, Assistant Crown Counsel for the Crown The appellant appeared in person 1963 - 1964 Z and NRLR p133 CHARLES J Judgment Charles J: The appellant was convicted before the Subordinate Court (class II) of the Magistrate, Lusaka, on two counts: (1) Unlawful entry into a na�onal park, contrary to sec�on 5 of the Game Ordinance, Cap. 106, in that he did enter the Kafue Na�onal Park on the 17th June, 1964, without a valid permit. (2) Carrying ﬁrearms in a na�onal park, contrary to sec�on 9 (1) of the Game Ordinance, Cap. 106, in that he was found, on the same date, in Kafue Na�onal Park, in possession of a gun without a valid permit. He was sentenced to imprisonment with hard labour for one month on the ﬁrst count and imprisonment with hard labour for four months on the second count, the sentences to be served concurrently. Forfeiture of his gun and ammuni�on was also ordered. The appellant appealed to this court against sentence. The record shows that the appellant's defence was that he had entered the game park without knowing that he had done so, and that the magistrate found as a fact that he had so entered. The magistrate convicted nonetheless, and he regarded the decision in R v Nicolai 2 NRLR 195 as showing that the sec�ons under which the appellant was charged created oﬀences of absolute liability, that is oﬀences of which mens rea is not an element and in respect of which absence of mens rea is not a defence. As the magistrate's decision was obviously open to argument on the point, I allowed the appellant to amend his no�ce of appeal to include an appeal against the convic�ons. The sec�ons under which the appellant was charged read as follows: " 5. It shall not be lawful for any person other than - (a) a public oﬃcer on duty within the park; (b) a person whose place of ordinary residence is within the park; (c) a person who has any rights over immovable property within the park; (d) a person engaged in bonaﬁde prospec�ng or mining opera�ons; (e) persons travelling through the park along a public highway; (f) the dependants and servants of the above persons; to enter or reside in a na�onal park except in accordance with a permit to enter or reside issued under the provisions of sec�on 6. 9 (1). No person shall in a na�onal park be in possession of any arms other than such as may be authorised by a permit issued under sec�on 6 or under this sec�on." The ques�on which has arisen on this appeal is whether each of those provisions is to be construed literally or as if the word " knowingly " is to be implied in it; before the words " to enter " in the case of sec�on 5 and before the words - " shall in a na�onal park " in the case of sec�on 9 (1). 1963 - 1964 Z and NRLR p134 CHARLES J In 1895, in Sherras v De Rutzen [1895] 1 Q. B. 918 at page 921, Wright, J, stated the law, as it appeared to have developed by then, in these words: ' "There is a presump�on that mens rea, an evil inten�on, or a knowledge of the wrongfulness of the act, is an essen�al ingredient in every oﬀence; but that presump�on is liable to be displaced either by words of the statute crea�ng the oﬀence or by the subject mater with which it deals, and both must be considered . . ." He then went on to say that the classes of statutes in which the presump�on has been found to have been nega�ved may perhaps be reduced to three: (i) those by which the legislature has seen ﬁt, in the public interest, to prohibit under penalty acts which are not criminal in themselves; (ii) those prohibi�ng under penalty acts which amount to a public nuisance; (iii) those allowing proceedings in criminal form as a summary mode of enforcing civil rights. The learned judge's atempt to classify the statutes in which the common law presump�on was commonly found to have been rebuted led many subsequent judges to concentrate more on whether or not a par�cular statute ﬁted into one of the categories of excep�ons than upon whether or not it was necessary to exclude the presump�on in order to achieve eﬀec�vely the manifest objects of the legislature. As a result the authori�es on the subject had become so confusing by 1943, that Jordan, CJ, in R v Turnbull (1943) 44 S. R (N. S. W.) 608; 18 A. L. J., page 201 et seq. was able to say this: "As regards the second element of mens rea - the necessity for establishing of the accused that he knew that he was in fact doing the criminal act with which he was charged - it was said by Cave, J, in R v Tolson (1889) 23 Q. B. D. 168 (a case of felony) that to eliminate this requirement in the case of a statutory oﬀence 'seems so revol�ng to the moral sense that we ought to require the clearest and most indisputable evidence that such is the meaning of the act.' If courts had adhered to this principle, this branch of the law would be free from diﬃculty. If it had been steadily insisted upon, persons sponsoring a bill by which it was sought to penalise a man for doing something, notwithstanding that he did not and could not know that he was doing it, would very soon have learned that it was necessary to disclose this on the face of the bill either in express terms or by words conveying so necessary an implica�on of inten�on in that behalf as to leave no room for doubt about their purpose. If the legislature were prepared to allow such a provision, it would pass it; if it disapproved of it, it would strike it out. In either case, the result would be perfectly clear; the legislature would know exactly what it was doing, and people would know exactly how they stood. Unfortunately, this course was not followed. It has been stated by high authority 1963 - 1964 Z and NRLR p135 CHARLES J that 'the legislature is not, by the use of other than the clearest words, to be taken to have subverted in any statute fundamental principles whether of law or of equity. It is a mater of judicial obliga�on to the legislature itself, that the court, in construing a statute shall make that presump�on': (In re Jordison; Raine v Jordison [1922] 1 Ch. 440 at page 465). But in the present connec�on the courts have manifested an increasing readiness to assume the role of legislators, and to ﬁll imagined lacunae in penal statutes by the conjectural emenda�ons of judges. The result has been lamentable. Penal statutes have acquired appendages of judge - made law based upon the conjectures of judges as to what the legislature would have provided if it had addressed its mind to a mater, where there is nothing to suggest that the legislature ever thought about it at all or that the appendage would have survived if it had been included as part of the bill. A fer�le ﬁeld of li�ga�on has been created; mul�tudes of reported cases have come into existence, many of them irreconcilable, in which the common law rule has been treated as excluded or not excluded upon judge - made indicia derived from cases in which there has o�en been a diﬀerence of opinion as to so - called necessary implica�ons; and no one can now be reasonably sure of the eﬀect of a penal statute un�l it has been tested by prosecu�ons. Indeed, so far have courts gone in this direc�on that in Hobbs v Winchester Corporation [1910] 2 KB 471 at page 483, Kennedy, LJ, expressed the opinion that there is ' a clear balance of authority that in construing a modern statute this presump�on as to mens rea does not exist '. It has been sought to base this upon a view that a penal statute must be read according to its literal words and that if those say nothing about inten�on or knowledge there is no room for any implica�on from the common law: Mallinson v Carr [1891] 1 Q. B. 48. This standpoint, however, found no favour with Dixon, J, in Thomas v The King (1937) 59 C. L. R 279, where his Honour described it as the Mikado principle, and said that a contrary principle, that of the common law, is applicable alike to oﬀences created by statute and to crimes exis�ng at common law. It is small wonder that in In re Mahmoud v Ispahani[1921] 2 KB 716 at pages 731 - 2, Atkin, LJ, said: ' I myself view with some trepida�on any tendency to diminish the importance of the rule as to mens rea which has prevailed in respect of criminal charges. There are cases no doubt where a statute makes it plain that an oﬀence is created without a criminal inten�on on the part of the person who is charged, but those cases, where the court is dealing with a ques�on of crime, are to my mind in themselves anomalous.' " A�er referring to the threefold classiﬁca�on of Wright, J, as being only a guide, the learned Chief Jus�ce con�nued: "The same language used to create an oﬀence would produce one result in rela�on to one subject mater and an opposite result in rela�on to another. By - laws regula�ng by the sanc�on of penal�es the width of streets, the height of buildings, the thickness of walls, and a variety of other maters necessary for the general 1963 - 1964 Z and NRLR p136 CHARLES J welfare, health or convenience were instanced as crea�ng oﬀences of which mens rea was not an ingredient. All the circumstances must be taken into considera�on, including the history of the legisla�on. The fact that the oﬀence entails a severe and degrading punishment would point to the reten�on of mens rea as an ingredient. It will be observed that the rule which it has been atempted to extract from the authori�es leaves plenty of room for doubt and conjecture; and it is not uncommon to ﬁnd some of the judges in a case discovering a necessary implica�on against mens rea whilst the rest ﬁnd no implica�on at all. There is an addi�onal source of confusion. Some judges have contrived to discover from the general atmosphere of a statute, without any assistance from its language, an inten�on on the part of the legislature, not that mens rea should not be an ingredient of a statutory oﬀence, but that proof of absence of mens rea should be a good defence: R v Ewart (1905) 25 N. Z. L. R 709 at page 731, which seems to be an unnecessarily complicated way of saying that mens rea remains an ingredient of the oﬀence but that the legislature must have meant to shi� the onus of proof, pu�ng it upon the accused to establish its absence. This would be so with a statute crea�ng oﬀences and which includes the word ' knowingly ' in respect of some of them and excludes it in rela�on to others: in such a case mens rea is an ingredient in both classes of oﬀence but the onus of proof is on the defendant where the oﬀence omits the word ' knowingly'." However, in Brend v Wood (1946) 62 T. L. R 462 (D. C.) that great exponent of the common law as a system which protects the rights of the individual, Lord Goddard, CJ., re-asserted the presump�on of mens rea, saying: "It should ﬁrst be observed that at common law there must always be mens rea to cons�tute a crime; if a person can show that he acted without mens rea that is a defence to a criminal prosecu�on. There are statutes and regula�ons in which Parliament has seen ﬁt to create oﬀences and make people responsible before criminal courts although there is an absence of mens rea, but it is certainly not the court's duty to be acute to ﬁnd that mens rea is not a cons�tuent part of a crime. It is of the utmost importance for the protec�on of the liberty of the subject that court should always bear in mind that, unless a statute, either expressly or by necessary implica�on, rules out mens rea as a cons�tuent part of a crime the court should not ﬁnd a man guilty of an oﬀence against the criminal law unless he has a guilty mind." In several later cases the King's Bench Divisional Court, presided over by Lord Goddard, acted on that statement: for example, in Harding v Price [1948] 1 All ER 283, 68 T. L. R 111; Reynolds v G. H. Austin and Sons Ltd. [1951] 1 All ER 606; and Gardner v Akeroyd [1952] 2 All ER 306. Last year the Privy Council gave the weight of its authority to the re-asser�on of the presump�on. In Lim Chin Aik v Reginam [1963] 1 All ER 223, Lord Evershed, in giving the advice of the board, which 1963 - 1964 Z and NRLR p137 CHARLES J consisted of himself, Viscount Radcliﬀe and Lord Devlin, referred to the dictum of Wright, J, in Sherras v De Rutzen and quoted with approval the last sentence in the passage quoted above from the judgment of Lord Goddard, CJ, in Brend v Wood. He then said: "The adop�on of these formula�ons of principle does not, however, dispose of the mater. Counsel for the respondent, indeed, as their Lordships understood, did not challenge the formula�ons. But the diﬃculty remains of their applica�on. What should be the proper inferences to be drawn from the language of the statute or statutory instrument under review . . .? More diﬃcult perhaps s�ll: what are the inferences to be drawn in a given case from the ' subject - mater with which (the statute or statutory instrument) deals '? Where the subject - mater of the statute is the regula�on for the public welfare of a par�cular ac�vity - statutes regula�ng the sale of food and drink are to be found among the earliest examples - it can be and frequently has been inferred that the legislature intended that such ac�vi�es should be carried out under condi�ons of strict liability. The presump�on is that the statute or statutory instrument can be eﬀec�vely enforced only if those in charge of the relevant ac�vi�es are made responsible for seeing that they are complied with. When such a presump�on is to be inferred, it displaces the ordinary presump�on of mens rea. Thus sellers of meat may be made responsible for seeing that the meat is ﬁt for human consump�on and it is no answer for them to say that they were not aware that it was polluted. If that were a sa�sfactory answer, then as Kennedy, LJ, pointed out in Hobbs v Winchester Corporation [1910] 2 KB 471 at pages 482 - 5, the distribu�on of bad meat (and its far - reaching consequences) would not be eﬀec�vely prevented. So a publican may be made responsible for observing the condi�on of his customers - Cundy v Le Cocq (1884) 13 Q. B. D. 207. But it is not enough in their Lordships' opinion merely to label the statute as one dealing with a grave social evil and from that to infer that strict liability was intended. It is per�nent also to inquire whether pu�ng the defendant under strict liability will assist in the enforcement of the regula�ons. That means that there must be something he can do, directly or indirectly, by supervision or inspec�on, by improvement of his business methods or by exhor�ng those whom he may be expected to inﬂuence or control, which will promote the observance of the regula�ons. Unless this is so, there is no reason in penalising him, and it cannot be inferred that the legislature imposed strict liability merely in order to ﬁnd a luckless vic�m. This principle has been expressed and applied in Reynolds v G. H. Austin and Sons Ltd (supra) and James and Sons Ltd. v Smee; Green v Burnett [1954] 3 All ER,. 273. Their Lordships prefer it to the alterna�ve view that strict liability follows simply from the nature of the subject - mater and that persons whose conduct is beyond any sort of cri�cism can be dealt with by the imposi�on of a nominal penalty. This later view can perhaps be supported to some extent by the dicta of Kennedy, LJ, in Hobbs v Winchester Corporation (supra) and of 1963 - 1964 Z and NRLR p138 CHARLES J Donovan, J, in R v St. Margaret's Trust Ltd. [1958] 2 All ER 289 at page 293. But though a nominal penalty may be appropriate in an individual case where excep�onal lenience is called for, their Lordships cannot, with respect, suppose that it is envisaged by the legislature as a way of dealing with oﬀenders generally. Where it can be shown that the imposi�on of strict liability would result in the prosecu�on and convic�on of a class of persons whose conduct could not in any way aﬀect the observance of the law, their Lordships consider that, even where the statute is dealing with a grave social evil, strict liability is not likely to be intended." With that passage should be read the much earlier dictum of the Privy Council which the Australian High Court has applied in consistently refusing, over sixty years, to construe statutes as imposing criminal liability en�rely without regard to fault, except those solely concerned with enforcing a civil right by a criminal remedy - whatever that may mean. (See Howard (1960), 76 L. Q. R 597). The dictum is: ". . . the absence of mens rea really consists in an honest and reasonable belief entertained by the accused of an existence of facts which, if true, would make the act charged against him innocent." (Bank of New South Wales v Piper [1897] A. C. 383, at pages 389 - 390. Cf. sec�on 11 of the Penal Code.) The latest decision of the Privy Council makes it clear, I think, that the rebutal of the presump�on of mens rea by implica�on stands on the same basis as the implica�on of any other mater in a statutory provision: that of necessity in order to render the provision eﬀec�ve for achieving its object. If that object can be achieved to a substan�al extent without the implica�on, the implica�on cannot be made notwithstanding that it may conduce to a more convenient or adequate administra�on of the provision. For the courts to indulge in what can only be specula�on as to degrees of eﬃcacy in achieving a legisla�ve object, instead of conﬁning themselves to the minimum requirement for making legisla�on workable, as the basis of implica�on is to depart from their role of expounding the law and to intrude into the province of the legislature. It was a result of such departures in respect of the presump�on of mens rea that the authori�es on that subject had got into such a state of confusion as to warrant the strictures of Jordan, CJ., in R v Turnbull (supra). It follows, in my judgment, that the rule rela�ng to mens rea as an element of a statutory oﬀence is this: In the absence of express provision for the oﬀence containing a mental element, it is presumed that the legislature intended that the oﬀence can only be commited by persons with knowledge of the existence or occurrence of the facts or circumstances cons�tu�ng it. That presump�on may be nega�ved expressly or impliedly. It is nega�ved impliedly if, but only if, the oﬀence is created in such terms and context as clearly manifest an inten�on to make it one of absolute liability, or if the substan�al suppression of the mischief at which the oﬀence is directed would not be achieved unless the oﬀence was one of absolute liability. In determining whether absolute liability is necessary to achieve a substan�al suppression of the mischief at which the oﬀence is directed regard is to be had to the nature of the oﬀence: to the nature of the 1963 - 1964 Z and NRLR p139 CHARLES J mischief to which the oﬀence is directed: to "knowledge" covering actual knowledge, correct belief and deliberate ignorance but not careless ignorance (see as to that, Nkoloso v The Queen H. P. A. 127/63); to the burden of proving knowledge o�en being lightened by the accused having the burden of adducing evidence of ignorance, as his state of mind is a mater peculiarly within his own knowledge; and to the extent to which the ignorant are likely to indulge in the mischief and defeat its suppression. Even when necessity is revealed for construing the oﬀence as covering the carelessly ignorant, the necessity may not extend to including the ignorant without fault within the scope of the oﬀence. In that case the provision crea�ng the oﬀence is to be construed as if it contained the words " knowing of or with reason to believe " in respect of the facts cons�tu�ng the oﬀence. With regard to the two provisions to which this appeal relates, their terms and context do not manifest any legisla�ve intent as to there being or not being a mental element in the oﬀences created. The absence of any words on the subject, such as " knowingly ", may well have been because either the legislature le� the provisions to take eﬀect according to the presump�on of mens rea or the dra�sman did not know or was afraid to state what he wanted. Either of those causes leaves the presump�on unrebuted. As to necessity for construing the provisions otherwise than as containing the single addi�onal word " knowingly " in order to achieve a substan�al suppression of the mischief aimed at, I can see none. That mischief is the killing and disturbance otherwise of wild life by unauthorised entrants into na�onal parks which it is the object of the Game Ordinance to create as sanctuaries. It may be that the number of persons who unknowingly stray into the na�onal parks is great and present a danger to the eﬀec�ve opera�on of the provisions. If that is a fact, however, it is not so obvious as to be within the judicial knowledge of the court, and thereby to aﬀord a basis both for ﬁnding necessity for construing the provisions otherwise than in accordance with the common law principle and for enhancing the importance of animal life above the ordinary civilised requirements of jus�ce. For the foregoing reasons, the two provisions under which the appellant was charged did not create oﬀences of absolute liability, but oﬀences of which knowledge of being in a na�onal park was an essen�al element, and, as the appellant entered without that knowledge, he was not guilty of the oﬀences charged against him. Before concluding, I must comment upon R v Nicolai (supra) upon which the magistrate based his decision. The decision in that case was upon the nature of a certain war - �me emergency price control order. The decision may or may not have been correct according to the latest Privy Council decision. The judgment in Nicolai's case did not purport, however, to lay down any general principle rela�ng to the determina�on of the existence of mens rea in statutory oﬀences, and the headnote to the report of it, sugges�ng the contrary and that the tendency is to construe statutes as crea�ng oﬀences of absolute liability, is quite erroneous. The appeals against convic�on will be allowed: the convic�ons and sentences being quashed and a judgment of an acquital on each count subs�tuted.